LAXMAN APPA GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) PRESENT petitioner is dealer in sandalwood and he has been in the business since about7-8 years prior to filing of the writ petition. In the month of September, 1990 he applied for transit pass for transporting sandalwood (4900 Kgs. wood and 4200 Kgs. chips/dust) to Hyderabad. It was claimed that this was finished product of remaining 40 sandal trees. He had permission issued by the Department dated 9.3.1990 for felling 100 sandal trees from Gut No. 104 of Harangul. The Forest Officer visited the premises for verification of the material. Having suspected the bonafides of the claim of petitioner, because almost all the sandalwood pieces were without any hammer mark; he entered into detailed enquiry and ultimately arrived at a conclusion that there were only 10 sandal trees in Gut No. 104 of Harangul. Concluding that petitioner had obtained permission for cutting 100 sandal trees, when there were only 10 sandal trees in the land, statements of petitioner were recorded. He was also served with notices calling upon to explain certain points and also to establish validity of his title to the sandalwood. As no satisfactory explanation was offered by petitioner, respondent No. 2 Forest Officer passed an order under Section 4 of the Maharashtra Felling of Trees (Regulation) Act, 1964 (for the sake of brevity, hereinafter, referred to as the MFT Act), imposing a penalty of Rs. 1,000 and forfeiting the sandal product to the State Government, in the light of his conclusion that this was finished sandalwood of sandal trees felled without requisite permission. This order dated 30.11.1991 passed by respondent No. 2 is being challenged by the present Writ Petition. The petitioner also prays for release of sandalwood in his favour and compensation.

(2.) RECORD shows that petitioner and Shri. S. T. H. Quadari, predecessor in office of present respondent No. 2, were prosecuted for the offences punishable under Sections 465, 468, 471, 120-B of the Indian Penal Code and Section 41 (2) (b) read with Section 42 of the Indian Forest Act, 1927 (for the sake of brevity, hereinafter, referred to as the IF Act.) Chief Judicial Magistrate, Latur while concluding Regular Criminal Case No. 272 of 1994, convicted petitioner for the offence punishable under Section 42 read with 41 (2) (b) of the IF Act and sentenced him to pay a fine of Rs. 250/ -. By the same judgment, dated 7.12.1995, Chief Judicial Magistrate has directed return of property to accused No. 1/petitioner. Both the accused were acquitted of all the remaining charges. State, by Criminal Appeal No. 419 of 1996, had prayed for enhancement of sentence against petitioner. In the time barred appeal, this Court was not inclined to condone the delay and also rejected the submission of learned Additional Public Prosecutor on merits, advanced inspite of above inclination. Application for Special Leave to Appeal against judgment dated 25.6.1997 by this Court was withdrawn by the State on 5.2.1999 by stating that it will move the appropriate forum challenging the direction of the Magistrate under Section 452 of the Code of Criminal Procedure. The Government of Maharashtra seems to have filed on 19.4.1999 Criminal Misc. Application No. 5 of 1999 in the Court of Sessions, Latur for condonation of delay in filing an appeal under Section 454 of the Code of Criminal Procedure.

(3.) COMPETENCE of the State Legislature to enact MFT Act is challenged by contending that subject is not contained in II list of VII Schedule of the Constitution of India. List II of the VII Schedule is "state" list. Entry at Sr. No. 18 in the said list includes the subject "land improvement". The preamble of MFT Act reads thus: " Whereas it is expedient to make better provision for regulating of felling of certain trees, in the State of Maharashtra, for the purpose of preservation thereof and for the protection of soil against erosion and to provide for matters connected therewith, it is hereby enacted. . . . . . . " (Emphasis supplied ). From entry No. 18 in the II list of VII Schedule of the Constitution of India, it is evident that the land improvement is a subject, about which the Legislature of the State has exclusive power to make laws for the State or any part thereof, and the purpose for which MFT Act is enacted includes protection of soil, in addition to preservation of the trees. It can not be disputed that preservation of trees enables protection of soil against erosion, and protection of soil should be the basic foundation regarding land improvement. Thus, we are unable to agree with the contention that MFT Act is a legislation on a subject, not contained within the competence of State Legislature, by Article 246 of the Constitution of India.